I have written a number of times about the broader implications of a privacy right embodied in decisions like Roe v. Wade. In particular, I have wondered how such a right can cover abortion decisions, but not a range of other individual decisions. I make this argument not as someone who wants to use regulatory precedent to ban abortions, but just the opposite: I would like to see the privacy right in Roe v. Wade broadened to invalidate more areas of government intervention in individual lives. I have discussed the conundrum that liberals face in defending this privacy right while opposing privacy rights in other areas of individual decision making (here and here).

Well, I did something last night I should have done long ago, and I bet very few others have actually done: I read in its entirety, including supporting and dissenting opinions. Five years ago, I would have been cowed into silence on commenting in detail on such decisions by the legal intelligentsia, who will likely insist that as a private citizen I am not trained or experienced enough to understand what's really going on in these opinions. To which I say today: Take a hike. The US Constitution is successful, and the European one is not, in no small part because the US Constitution fits on the back of a cereal box (rather than being 9000 pages long) and is accessible to every American.

Anyway, reading Roe v. Wade, I was struck most by just how much careful tightrope walking the majority opinion goes through to avoid just the dilemma I mentioned above: How to grant an unlimited, unassailable right to an abortion (at least in the first trimester) with no possibility of state intervention without at the same time invalidating half the regulatory structure of the US Government, from the FDA to the DEA to the NHTSA. In the rest of this post, I will discuss the basis the Justices claim for this distinction, which I found to be uncompelling.

The first, most interesting observation for me was that none of the judges, either in the decision or the dissent, were willing to grant a strong and/or broad privacy right. The majority opinion uses the interesting term "zones of privacy", which immediately set off alarm bells for me since the term is so similar to the "free speech zones" term I find repugnant (the whole country should be a free speech zone, not little patches of ground with ropes around them). Apparently, these "privacy zones" fairly narrowly include marriage, sex and procreation, children's education and pregnancy. I can't think of any compelling reason that those decisions and interactions between two adults should be "private" while eating, smoking, taking drugs and medications, getting breast implants, negotiating a wage, wearing a seat belt, using a tanning booth, getting a tattoo, or using a motorcycle helmet are not "private".

The key phrase the Justices use is "compelling state interest". What I find fascinating in this decision, and really I guess in most recent Supreme Court Jurisprudence, is that that somehow the 9th amendment, which retained to the people all powers and rights not specifically enumerated for the government, has gained this modifier. Effectively the 9th amendment has been rewritten "The enumeration in the Constitution, of certain rights,
shall not be construed to deny or disparage others retained by the
people, unless some random politician can demonstrate a compelling state interest and then the government can do whatever the hell it wants".

Rehnquist actually notes something similar in his dissent:

If the Court means by the term "privacy" no more than that the claim of
a person to be free from unwanted state regulation of consensual
transactions may be a form of "liberty" protected by the Fourteenth
Amendment, there is no doubt that similar claims have been upheld in
our earlier decisions on the basis of that liberty. I agree with the
statement of MR. JUSTICE STEWART in his concurring opinion that the
"liberty," against deprivation of which without due process the
Fourteenth [410
U.S. 113, 173]

Amendment protects, embraces more than the rights found in the
Bill of Rights. But that liberty is not guaranteed absolutely against
deprivation, only against deprivation without due process of law. The
test traditionally applied in the area of social and economic
legislation is whether or not a law such as that challenged has a
rational relation to a valid state objective.

In some strange way, the Fourteenth Amendment, which was originally meant to add increased protection to citizens, has been turned around to justify government interventionism, just as long as some sort of "due process" has been followed. Rather than buttress the 9th amendment, this modern interpretation of the 14th seems to gut the 9th amendment.

Just what is "a compelling state interest"? Could there possibly be a more amorphous term, abusable term? More importantly, who defines
it? Remember that whoever gets to define compelling state interest becomes our de
facto ruler. I think there is a really good reason that the framers of the Constitution did now write that "the government has all powers that there is a compelling state interest to have". This line would have made the document a license for totalitarianism, but for some reason, our courts have basically rewritten the Constitution to read just this way. The only thing stopping us from being a totalitarian state today are judges that are willing to read "compelling state interest" narrowly. And these judges just slow the process of creeping statism. It only takes one decision, like Kelo, to expand the definition of state interest, and all case law afterward seem to follow this expanded view of government. This statism is like entropy or time, a process that only proceeds in one direction, towards expansion of government power, never to its narrowing. The Left in particular has gotten good at using the Stare Decisis concept to try to disallow revisiting any decision that expanded the scope of government (Roe v. Wade interestingly again being the one exception, since it is a limitation rather than expansion of state power).

This reading of the 9th and 14th amendment, and this concept of "valid state interest" appear to stem out of the Lochner case, which will be my next reading project. I will try to report back next week. However, even without reading this case, I will say that I have no patience for legal scholars who say that some bad outcome came from this case, which was based on a precedent in this case, which came out of that case, etc. Have you ever taken a document, and copied it, and then made a copy of the copy, and then a copy of that copy, etc. for 20 or so generations? On the 20th or so generation copy you will find spots and lines and such that were not in the original, but just appeared and then strengthened over time through generations of copying. In some cases, the original writing may be illegible. Sometimes, you have to ignore all the copying and go back to the original. This is my position as an ordinary citizen on Supreme Court cases - at some point I get exasperated by these government powers that appear and evolve over time through generations of court cases - I just want to go back to the original (ie the Constitution) and point out that those powers are not supposed to be there.

However, you I hope see the quandary in which all this leaves abortion supporters on the left. Much of their philosophy and political agenda rests on this notion of "a compelling state interest" in nearly every facet of human endeavor. The left pushes constantly for expansion of government regulation into every corner of our lives. They are trying to walk a line, a line so narrow I don't think it even exists, between there being no state interest in 16 year old girls getting abortions without their parents' knowledge or consent and there being a strong state interest in breast implants, painkillers, seat belt use, bike helmets, tobacco use, fatty foods, etc. They somehow have to make the case that that a woman is fully able to make decisions about an abortion but is not able to make decisions, without significant government regulation and intervention, about her retirement savings, the wages she accepts for her work, her use of a tanning booth, and her choice of painkillers. I personally think she can handle all these, and more.

As a final note, it is more clear to me why abortion supporters fear a re-hearing of Roe v. Wade by the Court. I must say that before reading the decision, I was taken in by their public comments that their fear was of conservatives reversing the decision on ideological grounds. Having read the decision, though, their fear must be more fundamental: Roe v. Wade in some sense stands athwart the inexorable march of government interventionism that the left generally applauds. As such, a rehearing, however the case is decided, could only be a setback for the left: Either Roe v. Wade is overturned, and the left is hoist on its own petard of creeping government intrusiveness, or Roe v. Wade is confirmed, and in fact is used as a precedent to strengthen the privacy right and thus provide a basis for overturning other statist regulatory infrastructure. I am rooting for the latter.